What is unjust about theft?

JurisdictionSouth Africa
Citation2019 Acta Juridica 347
Published date24 December 2019
Date24 December 2019
Pages347-369
347
What is unjust about theft?
MICHAEL BRYAN*
The principles governing the restitution of stolen property ought to
be straightforward in any legal system, but in common-law systems it
is surprisingly hard to state what these principles are. There are many
reasons for the unsettled state of the law. The restitution of stolen
property, or its value, lies on the indistinct boundary that separates
restitution for unjust enrichment from restitution for wrongs. On
the unjust enrichment side of the boundary, common lawyers have
never clearly articulated the precise injustice that justies the claim to
restitution. They have also not identied the precise circumstances in
which the thief, or later the receiver, is in law enriched. Further more,
the historic division between common law and equitable property
rights obstructs attempts to rationalise the restitutionary principles.
Finally, disagreement between common-law jurisdictions as to whether
proprietary claims can be brought to recover the proceeds of thefts
not involving a breach of duciary duty also complicates the story.
This paper proposes a scheme of restitution based on the absence of
consent to taking rather than on the commission of the crime of theft.
The scheme recognises that the unauthorised taking of property by
duciaries, such as trustees and company directors, raises dierent
considerations from those raised by thefts committed by non-duciaries.
I INTRODUCTION
Daniel Visser memorably described a civil lawyer’s initial encounter
with the law of enrichment in common-law systems as being ‘not
unlike that of the palaeontologists who rst came across earth’s great
experiment with the weird and wonderful alternative life-forms
embedded in the Precambrian fossils of South Australia.1 Common-
law unjust enrichment, like the earliest life-for ms on the geological
timescale, seems both familiar and strange to the civilian. Some parts
– for example, the restitution of mistaken payments or property
transferred under duress – will be familiar, at least as far as the basic
* PhD (London) MA BCL (Oxford); Emeritus Professor of Law, University of
Melbourne.
1 D Visser ‘Unjustied enr ichment in comparative perspective’ in M Reimann
& R Zimmermann (eds) The Oxford Handbook of Comparative Law (2006) 970.
2019 ACTA 347
© Juta and Company (Pty) Ltd
348 PRIVATE LAW IN A CHANGING WORLD
structure of liability is concerned. But common-law systems apply
concepts that have no counterpart in other systems, even though
the factual patterns to which they are applied are universal.
Some of the strangest concepts derive from those doctrines
and remedies classied in common-law systems as equitable. Their
origins lie in the English Court of Chancer y, whose jurisdiction
is nowadays exercisable by all superior and most inferior cour ts
in common-law countries. It is here that we nd trusts, including
resulting and constructive trusts which have evolved as remedies,
as well as principles such as tracing that facilitate the identication
of the claimant’s rights when her property has been exchanged for
other property. These concepts were developed long before the
law of unjust enrichment was recognised as a discrete source of
obligation in common-law jurisdictions. Their role within that law
remains controversial. Disputes about the extent to which a rational
law of unjust enrichment can be constructed from its discrete
common-law and equitable components still resemble theological
debates in that they attract high priests, disciples, sceptics and the
occasional martyr.
The particular restitutionary life-form discussed in this paper
is the unjust enrichment claim for stolen property. The topic
is considered by Daniel Visser in chapter 11 of his magnum opus,
Unjustied Enrichment.2 The law is here concerned, as the author tells
us, with ‘enrichment by taking’, rather than ‘enrichment by giving’.3
Visser notes that the private law remedies for theft in South African
law are ‘located on the faultline between delict and enrichment.’4
Apart from the availability of a vindicatory remedy against the thief
in possession, the claimant may invoke various condictiones – the
condictio sine causa specialis, the actio ad exhibendum or the condictio
furtiva – depending on the circumstances of the case.
Common-law systems also suer from a confusion of aims as
to whether restitutionary remedies for theft are wrongs-based,
vindicate property rights, or reverse unjust enr ichment. But
whereas the principal question for South African law is to identify
the action to be brought against the thief or the receiver of stolen
property, common lawyers must undertake considerable (and, it
2 D Visser Unjustied Enrichment (2008) 652–73.
3 Visser (n 2) 652, citing K Reid ‘Unjustied enrichment and property law’
1994 Juridical Review 167, 171.
4 Visser (n 2) 660.
© Juta and Company (Pty) Ltd

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